Ethics in Practice

Punishment

America and is likely to be so for the foreseeable future. The evidence for this conclusion comes from various sources. Numerous studies show that killers of whites are more likely to get the death penalty than killers of blacks, and that black killers of whites are far more likely to be sentenced to death than white killers of blacks. Moreover, just about everyone recognizes that poor people are more likely to be sentenced to death and to have those sentences carried out than well-off people. And these injustices persist even after all death penalty statutes were declared unconstitutional in 19728 and only those death penalty statutes with provisions for reducing arbitrariness in sentencing were admitted as constitutional in 1976. 9 In short, injustice in the application of the death penalty persists even after legal reform, and this strongly suggests that it is so deep that it will not be corrected in the foreseeable future.

It might be objected that discrimination is also found in the handing out of prison sentences and thus that this argument would prove that we should abolish prison as well as the death penalty. But I accept that we need some system of punishment to deter crime and mete out justice to criminals, and for that reason even a discriminatory punishment system is better than none. Then, the objection based on discrimination works only against those elements of the punishment system that are not needed either to deter crime or to do justice, and I have shown above that this is true of the death penalty. Needless to say we should also strive to eliminate discrimination in the parts of the criminal justice that we cannot do without.

Other, more subtle, kinds of discrimination also affect the way the death penalty is actually carried out. There are many ways in which the actions of well-off people lead to death which are not counted as murder. For example, many more people die as a result of preventable occupational diseases (due to toxic chemicals, coal and textile dust, and the like, in the workplace) or preventable environmental pollution than die as a result of what is treated legally as homicide. 1O So, in addition to all the legal advantages that money can buy a wealthy person accused of murder, the law also helps the wealthy by not defining as murder many of the ways in which the wealthy

are responsible for the deaths of fellow human beings. Add to this that many of the killings that we do treat as murders, the ones done by the poor in our society, are the predictable outcome of remediable social injustice ~ the discrimination and exploitation that, for example, have helped to keep African Americans at the bottom of the economic ladder for centuries. Those who benefit from injustice and who could remedy it bear some of the responsibility for the crimes that are the predictable outcome of injustice ~ and that implies that plenty of well-off people share responsibility with many of our poor murderers. But since these more fortunate folks are not likely to be held responsible for murder, it is unfair to hold only the poor victims of injustice responsible ~ and wholly responsible to boot!

Finally, we already saw that the French existentialist, Albert Camus, asserted famously that life on death row is a kind of torture. Recently, Robert Johnson has studied the psychological effects on condemned men on death row and confirmed Camus' claim. In his book Condemned to Die, Johnson recounts the painful psychological deterioration suffered by a substantial majority of the death row prisoners he studied. 11 Since the death row inmate faces execution, he is viewed as having nothing to lose and thus is treated as the most dangerous of criminals. As a result, his confinement and isolation are nearly total. Since he has no future for which to be rehabilitated, he receives the least and the worst of the prison's facilities. Since his guards know they are essentially warehousing him until his death, they treat him as something less than human ~ and so he is brutalized, taunted, powerless and constantly reminded of it. The effect of this on the death row inmate, as Johnson reports it, is quite literally the breaking down of the structures of the ego ~ a process not unlike that caused by brainwashing. Since we do not reserve the term "torture" only for processes resulting in physical pain, but recognize processes that result in extreme psychological suffering as torture as well (consider sleep deprivation or the so-called Chinese water torture), Johnson's and Camus' application of this term to the conditions of death row confinement seems reasonable.

It might be objected that some of the responsibility for the torturous life of death row inmates is the inmates's own fault, since in pressing their legal appeals, they delay their executions and thus prolong their time on death row. Capital murder convictions and sentences, however, are reversed on appeal with great frequency, nearly ten times the rate of reversals in noncapital cases. This strongly supports the idea that such appeals are necessary to test the legality of murder convictions and death penalty sentences. To hold the inmate somehow responsible for the delays that result from his appeals, and thus for the (increased) torment he suffers as a consequence, is effectively to confront him with the choice of accepting execution before its legality is fully tested or suffering torture until it is. Since no just society should expect (or even want) a person to accept a sentence until its legal validity has been established, it is unjust to torture him until it has and perverse to assert that he has brought the torture on himself by his insistence that the legality of his sentence be fully tested before it is carried out.

The worst features of death row might be ameliorated, but it is unlikely that its torturous nature will be eliminated, or even that it is possible to eliminate it. This is, in part, because it is linked to an understandable psychological strategy used by the guards in order to protect themselves against natural, painful, and ambivalent feelings of sympathy for a person awaiting a humanly inflicted death. Johnson writes: "I think it can also be argued ... that humane death rows will not be achieved in practice because the purpose of death row confinement is to facilitate executions by de-humanizing both the prisoners and (to a lesser degree) their executioners and thus make it easier for both to conform to the etiquette of ritual killing. ,,12

If conditions on death row are and are likely to continue to be a real form of psychological torture, if Camus and Johnson are correct, then it must be admitted that the death penalty is in practice not merely a penalty of death - it is a penalty of torture until death. Then the sentence of death is more than the lex talionis allows as a just penalty for murder - and thus it is unjust in practice.

Against the Death Penalty

I think that I have proven that it would be good in principle to refrain from imposing the death penalty and bad in practice to continue using it. And, I have proven this while accepting the two strongest claims made by defenders of capital punishment, namely, that death is just punishment for at least some murderers, and that, if the death penalty were a superior deterrent to murder than imprisonment that would justify using the death penalty.

Notes

The full argument for these propositions, along with supporting data, references and replies to objections is in Louis Pojman and Jeffrey Reiman,

The Death Penalty: For and Against (Lanham, MD: Rowman Littlefield Publishers, Inc., 1998), pp. 67-132, 151-63. That essay in turn is based upon and substantially revises my "Justice, Civilization, and the Death Penalty: Answering van den Haag," Philosophy and Public Affairs 14, no. 2 (Spring 1985): 115-48, and my "The Justice of the Death Penalty in an Unjust World," in

Challenging Capital Punishment: Legal and Social Science Approaches, ed. K. Haas J. Inciardi (Beverly Hills, CA: Sage, 1988), pp. 29-48.

2Some recent developments, most notably the use of DNA testing to exonerate a number of death row inmates, suggest that this claim may be overly optimistic. In that case, the risk of condemning the innocent would become a stronger argument against capital punishment and, in fact, has recently led to calls for a moratorium on executions. In January 2000, Illinois Governor George Ryan, "a Republican who supports capital punishment, cited the exoneration of 13 death row inmates since Illinois readopted the death penalty in 1977 and said he would permit no more executions until a study was completed of a system he described as 'fraught with error'" (Sara Rimer, "U.S. Cities Call for Death Penalty Moratorium," International Herald Tribune, November I, 2000, p. 7). Philadelphia, Atlanta, Baltimore, San Francisco and Charlotte, North Carolina, are among two dozen cities that have recently passed non-legally binding moratorium resolutions, and polls show that support for the death penalty among Americans is at its lowest in 20 years - down to two-thirds from a high of75 percent in 1994.

Punishment

3Elsewhere I have argued at length that punishment needed to deter reasonable people is deserved by criminals. See Pojman and Reiman,

The Death Penalty, pp. 79-85.

4Immanuel Kant, "The Metaphysical Elements of Justice," pt. I of The Metaphysics of Morals, trans. J. Ladd (Indianapolis, IN: Bobbs-Merrill, 1965; originally published 1797), p. 104, see also

p.133.

5 Alfred Blumstein, Jacqueline Cohen, and Daniel Nagin, eds., Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (Washington, DC: National Academy of Sciences, 1978), p. 9.

6Hugo Bedau has developed this latter consideration at length with respect to the death penalty. See Hugo A. Bedau, "Thinking about the Death

Penalty as a Cruel and Unusual Punishment," u.c. Davis Law Review 18 (Summer 1985): 917ff. This article IS reprinted In Hugo A.

Bedau, Death Is Different: Studies in the Moral- i~y, Law, and Politics of Capital Punishment

(Boston: Northeastern University Press, 1987); and Hugo A. Bedau, ed., The Death Penalzy in America: Current Controversies (New York: Oxford University Press, 1997).

7Albert Camus, "Reflections on the Guillotine," in Albert Camus, Resistance, Rebellion, and Death

(New York: Knopf, 1961), p. 205.

8Furman v Georgia, 408 U.S. 238 (1972).

9Gregg v Georgia, 428 U.S. 153 (1976).

10Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice,

6th edn. (Needham Heights, MA: Allyn Bacon, 2001), pp. 79-85, 88-94.

IIRobert Johnson, Condemned to Die: Life under

Sentence of Death (New York: Elsevier, 1981),

pp. 129ff.

12Robert Johnson, personal correspondence to author.

Philosophers have historically distinguished between three types of justice. In the previous section on PUNISHMENT, the authors discussed two of these: retributive and compensatory justice. In the current section, the authors focus on the third: distributive justice. Distributive justice concerns how we should distribute the products of social cooperation among the community's citizens. Some of the most important goods a society distributes are economic.

The first two selections articulate the most widely discussed theories of economic justice. The essay by Rawls outlines the economic implications of his theory of justice. Before I describe his economic views (captured in his "second principle of justice"), I must briefly mention his "first principle of justice," namely, that the first responsibility of government is to guarantee equal civil liberties for all citizens. According to Rawls, governments should protect liberties such as those granted in the United States Constitution: freedom of speech, freedom of religion, freedom of the press, etc. These liberties are essential to any just society; we cannot sacrifice them to increase economic well-being. Nor may we sacrifice any particular individual's civil liberties for the benefit of others, not even the majority. Rawls's emphasis on individual freedom is reminiscent of the views of several authors in the sections on drugs (in PATERNALISM AND RISK) and FREE SPEECH.

After these individual liberties are secure, we may then settle on a system for distributing

economic goods. He proposes that we adopt his "second principle of justice," namely, that the state should distribute economic goods to maximize the advantage of the least advantaged members of society. This principle will permit some people to have more economic goods than others, but only if their having more goods will promote the well-being of the least well-off members of society. By following this principle, we know that even the most disadvantaged members of society will have a tolerably decent life - the best life they could reasonably expect.

Rawls's argument for these two principles has important theoretical implications, and is therefore worthy of mention. We should arrive at principles of justice from behind what he calls "the veil of ignorance." That is, we should ask not, "What principle of justice would I adopt if I knew my talents, interests, and station in life?" but "What principles of justice would I adopt if I were ignorant of my talents, interests, and station in life?" He offers both practical and moral reasons for claiming that we should select principles of justice in this way. The practical reason is simple: if we ask the first question, we lose any chance for consensus. Each of us will, intentionally or unintentionally, strive to design principles that will benefit us, given our particular array of interests and talents. However, if we asked the second question, we would be likely to select principles of justice that promoted our interests, no matter what our specific interests and talents happened to be. Therefore, we would be more likely to identify principles

Economic Justice

on which all rational people (who go through this reasoning process) could agree.

Rawls also offers moral reasons for selecting principles from behind the veil of ignorance. Reasoning behind the veil of ignorance will lead us to minimize the influence of luck in determining peoples' life prospects. Rawls claims that the circumstances of one's birth - one's natural talents, social status, family influences, etc. - are matters of luck that should not unduly influence our chances in life. A central task of morality is to constrain the detrimental effects of luck.

Is he correct? That is clearly a theoretical question with profound practical consequences. Those who embrace a retributive theory of PUNISHMENT (Rachels, and to some degree, Murphy) would likely sympathize with Rawls's claim. For if justice requires that we give people what they deserve, and what they deserve is determined by their freely chosen actions, then it is difficult to see why someone who was born intelligent deserves more than someone who was born retarded. We will also see disagreements about the appropriate role of luck in the discussion of WORLD HUNGER AND INTERNATIONAL JUSTICE. Children in developed countries have better life prospects than children in third world countries for one reason alone: luck in the circumstances of their birth. I did not deserve to be born to parents who could provide for me, in a country with an educational system like the US; certainly I did not deserve it more than a poor child in Addis Ababa, Baghdad, or Jakarta. So why should I have a relatively cushy life, while they fight to stay alive, simply because of luck? Should luck play such a large role in determining our fates? Or should morality seek to limit luck's influence?

Nozick thinks not. The job of morality is not to eliminate the detrimental effects of luck. In fact, the aim of justice is not to strive to achieve any particular economic distribution. The state does not have the right to distribute economic goods. Particular individuals already own those goods. The role of a theory of economic justice is simply to set down rules that everyone should follow in acquiring and transferring economic goods. The ideal theory, according to Nozick, would go something like this: If someone ac-

quires her goods justly, that is, by initially acquiring them fairly, or by receiving the goods, via transfer, from someone who justly owned them, then there is nothing else we need know. What makes a distribution just, according to Nozick, is not the final outcome, but the rules followed in determining that distribution.

Nozick further argues that we can achieve and maintain an ideal distribution only by constantly interfering with individual liberty. If people have liberty, then they will, through private transfers, inevitably alter the distribution so that it no longer satisfies the ideal - no matter what the ideal. Perhaps we can best understand Nozick's view, if we assume that he imports Mill's emphasis on individual liberty (FREE SPEECH and PATERNALISM AND RISK) into the economic arena. For Nozick, all liberty - whether civil or economic - is created equal. If he is correct, then that has important implications for other practical issues.

For instance, if we embrace Nozick's view about the sanctity of individual property rights, then individuals should be able to keep their property, even if, by so doing, other people die. Indeed, that is precisely the thrust of Arthur's arguments about WORLD HUNGER AND INTERNATIONAL JUSTICE.

Young rejects this entire way of describing and discussing the issue of justice. Although distribution is an important element of justice, it is not, she claims, the only or even the most important element. For instance, the state should provide educational and employment opportunities for all citizens. We cannot use a purely distributive model to adequately evaluate whether the state has provided for these fundamental needs. Distributive justice is concerned with handing out consumable goods in a fair and reasonable manner. However, equality of opportunity is not so much a matter of what we have, as what we do. The distributive paradigm simply ignores these crucial elements of justice.

Moreover, the "standard" ways of framing issues about justice mask the powerful role social institutions play not only in determining who gets what, but also in determining how we define and evaluate jobs and positions. Why do we describe some positions as professional jobs

and other jobs as "white-collar?" Is there any intrinsic reason why physicians should make more money than astrophysicists, even if both positions require similar training, talent, and expertise? And how, exactly, do we best guarantee equality of opportunity?

The distributive paradigm does not give us a plausible response to any of these questions. So, Young argues, we should abandon the distributive paradigm, and focus instead on relationships of power, especially relationships of domination and oppression. Other authors raised these concerns earlier, for example, in the discussions of SEXUAL AND RACIAL DISCRIMINATION and AFFIRMATIVE ACTION.

Wolff's discussion of and worries about competition shares some of Young's misgivings about standard views of distributive justice. In particular, he fears that we become so accustomed to using competition to distribute economic goods that we do not pay attention to the ways in which some forms of competition may harm those who lose. Admittedly not all forms of competition are objectionable; participants may actually enjoy it. But in our economic world, some people do not enjoy it and are regularly harmed by it.

Here again we see deep disagreements about what constitutes harm. On Nozick's view competition does not harm anyone, even though some people are most assuredly losers. The losers are not harmed because they are not wronged by the winners. Wolff, however, con-

Economic Justice

tends this is an unduly narrow conception of harm. Defenders of capitalism do claim that the losers are not harmed since the economic system benefits everyone (by presumably lowering prices and raising quality). However, although this may be true, Wolff argues, it still exploits some workers by using them for the benefits of others. Such use is morally acceptable only if those who lose are properly said to benefit by that system. That would seem to require that we erect a safety net to insure that the losers don't fall too far. Moreover, we should change our economic relations with other countries so that we do not exploit third world workers just so we can have cheaper and more plentiful goods.

Further Reading

Feinberg, J. 1980: Rights, Justice, and the Bounds of Liberty. Princeton, NJ: Princeton University Press.

Goodin, R. and Pettit, P. 1993: A Companion to Contemporary Political Philosophy. Oxford: Blackwell Publishers.

Locke, J. 1963: Two Treatises of Government, Peter Laslett (ed.). New York: Cambridge University Press.

Nozick, R. 1974: Anarchy, State, and Utopia. New York: Basic Books.

Rawls, J. 1970: A Theory ofJustice. Cambridge, MA: Harvard University Press.

Waldron, J. 1986: "Welfare and the Images of Charity." Philosophical Quarterly, 36: 463-82

John Rawls

The Main Idea of the Theory of Justice

My aim is to present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant. 1 In order to do this we are not to think of the original contract as one to enter a particular society or to set up a particular form of government. Rather, the guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement. They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles are to regulate all further agreements; they specify the kinds of social cooperation that can be entered into and the forms of government that can be established. This way of regarding the principles of justice I shall call justice as fairness.

Thus we are to imagine that those who engage in social cooperation choose together, in one joint act, the principles which are to assign basic rights and duties and to determine the division of social benefits. Men are to decide in advance how they are to regulate their claims against one another and what is to be the foundation charter of their society. Just as each person must decide by rational reflection what constitutes his good, that is, the system of ends

which it is rational for him to pursue, so a group of persons must decide once and for all what is to count among them as just and unjust. The choice which rational men would make in this hypothetical situation of equal liberty, assuming for the present that this choice problem has a solution, determines the principles of justice.

In justice as fairness the original position of equality corresponds to the state of nature in the traditional theory of the social contract. This original position is not, of course, thought of as an actual historical state of affairs, much less as a primitive condition of culture. It is understood as a purely hypothetical situation characterized so as to lead to a certain conception of justice.2 Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain. For given the cir-

cumstances of the original position, the symmetry of everyone's relations to each other, this initial situation is fair between individuals as moral persons, that is, as rational beings with their own ends and capable, I shall assume, of a sense of justice. The original position is, one might say, the appropriate initial status quo, and thus the fundamental agreements reached in it are fair. This explains the propriety of the name "justice as fairness": it conveys the idea that the principles of justice are agreed to in an initial situation that is fair. The name does not mean that the concepts of justice and fairness are the same, any more than the phrase "poetry as metaphor" means that the concepts of poetry and metaphor are the same.

Justice as fairness begins, as I have said, with one of the most general of all choices which persons might make together, namely, with the choice of the first principles of a conception of justice which is to regulate all subsequent criticism and reform of institutions. Then, having chosen a conception of justice, we can suppose that they are to choose a constitution and a legislature to enact laws, and so on, all in accordance with the principles of justice initially agreed upon. Our social situation is just if it is such that by this sequence of hypothetical agreements we would have contracted into the general system of rules which defines it. Moreover, assuming that the original position does determine a set of principles (that is, that a particular concept of justice would be chosen), it will then be true that whenever social institutions satisfy these principles those engaged in them can say to one another that they are cooperating on terms to which they would agree if they were free and equal persons whose relations with respect to one another were fair. They could all view their arrangements as meeting the stipulations which they would acknowledge in an initial situation that embodies widely accepted and reasonable constraints on the choice of principles. The general recognition of this fact would provide the basis for a public acceptance of the corresponding principles of justice. No society can, of course, be a scheme of cooperation which men enter voluntarily in a literal sense; each person finds himself placed at birth in some particular position in some par-

A Theory of Justice

ticular society, and the nature of this position materially affects his life prospects. Yet a society satisfying the principles of justice as fairness comes as close as a society can to being a voluntary scheme, for it meets the principles which free and equal persons would assent to under circumstances that are fair. In this sense its members are autonomous and the obligations they recognize self-imposed.

One feature of justice as fairness is to think of the parties in the initial situation as rational and mutually disinterested. This does not mean that the parties are egoists, that is, individuals with only certain kinds of interests, say in wealth, prestige, and domination. But they are conceived as not taking an interest in one another's interests. They are to presume that even their spiritual aims may be opposed, in the way that the aims of those of different religions may be opposed. Moreover, the concept of rationality must be interpreted as far as possible in the narrow sense, standard in economic theory, of taking the most effective means to given ends. I shall modify this concept to some extent, as explained later, but one must try to avoid introducing into it any controversial ethical elements. The initial situation must be characterized by stipulations that are widely accepted.

In working out the conception of justice as fairness one main task clearly is to determine which principles of justice would be chosen in the original position. To do this we must describe this situation in some detail and formulate with care the problem of choice which it presents. These matters I shall take up later. It may be observed, however, that once the principles of justice are thought of as arising from an original agreement in a situation of equality, it is an open question whether the principle of utility would be acknowledged. Offhand it hardly seems likely that persons who view themselves as equals, entitled to press their claims upon one another, would agree to a principle which may require lesser life prospects for some simply for the sake of a greater sum of advantages enjoyed by others. Since each desires to protect his interests, his capacity to advance his conception of the good, no one has a reason to acquiesce in an enduring loss for himself in order to bring

Economic Justice

about a greater net balance of satisfaction. In the absence of strong and lasting benevolent impulses, a rational man would not accept a basic structure merely because it maximized the algebraic sum of advantages irrespective of its permanent effects on his own basic rights and interests. Thus it seems that the principle of utility is incompatible with the conception of social cooperation among equals for mutual advantage. It appears to be inconsistent with the idea of reciprocity implicit in the notion of a well-ordered society. Or, at any rate, so I shall argue.

I shall maintain instead that the persons in the initial situation would choose two rather different principles: the first requires equality in the assignment of basic rights and duties, while the second holds that social and economic inequalities, for example inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society. These principles rule out justifying institutions on the grounds that the hardships of some are offset by a greater good in the aggregate. It may be expedient but it is not just that some should have less in order that others may prosper. But there is no injustice in the greater benefits earned by a few provided that the situation of persons not so fortunate is thereby improved. The intuitive idea is that since everyone's well-being depends upon a scheme of cooperation without which no one could have a satisfactory life, the division of advantages should be such as to draw forth the willing cooperation of everyone taking part in it, including those less well situated. Yet this can be expected only if reasonable terms are proposed. The two principles mentioned seem to be a fair agreement on the basis of which those better endowed, or more fortunate in their social position, neither of which we can be said to deserve, could expect the willing cooperation of others when some workable scheme is a necessary condition of the welfare of all. 3 Once we decide to look for a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstance as counters in the quest for political and economic advantage, we are led to these principles. They

express the result of leaving aside those aspects of the social world that seem arbitrary from a moral point of view.

The problem of the choice of principles, however, is extremely difficult. I do not expect the answer I shall suggest to be convincing to everyone. It is, therefore, worth noting from the outset that justice as fairness, like other contract views, consists of two parts: (1) an interpretation of the initial situation and of the problem of choice posed there, and (2) a set of principles which, it is argued, would be agreed to. One may accept the first part of the theory (or some variant thereof), but not the other, and conversely. The concept of the initial contractual situation may seem reasonable although the particular principles proposed are rejected. To be sure, I want to maintain that the most appropriate conception of this situation does lead to principles of justice contrary to utilitarianism and perfectionism, and therefore that the contract doctrine provides an alternative to these views. Still, one may dispute this contention even though one grants that the contractarian method is a useful way of studying ethical theories and of setting forth their underlying assumptions.

Justice as fairness is an example of what I have called a contract theory. Now there may be an objection to the term "contract" and related expressions, but I think it will serve reasonably well. Many words have misleading connotations which at first are likely to confuse. The terms "utility" and "utilitarianism" are surely no exception. They too have unfortunate suggestions which hostile critics have been willing to exploit; yet they are clear enough for those prepared to study utilitarian doctrine. The same should be true of the term "contract" applied to moral theories. As I have mentioned, to understand it one has to keep in mind that it implies a certain level of abstraction. In particular, the content of the relevant agreement is not to enter a given society or to adopt a given form of government, but to accept certain moral principles. Moreover, the undertakings referred to are purely hypothetical: a contract view holds that certain principles would be accepted in a well-defined initial situation.

The merit of the contract terminology is that it conveys the idea that principles of justice may

be conceived as principles that would be chosen by rational persons, and that in this way conceptions of justice may be explained and justified. The theory of justice is a part, perhaps the most significant part, of the theory of rational choice. Furthermore, principles of justice deal with conflicting claims upon the advantages won by social cooperation; they apply to the relations among several persons or groups. The word "contract" suggests this plurality as well as the condition that the appropriate division of advantages must be in accordance with principles acceptable to all parties. The condition of publicity for principles of justice is also connoted by the contract phraseology. Thus, if these principles are the outcome of an agreement, citizens have a knowledge of the principles that others follow. It is characteristic of contract theories to stress the public nature of political principles. Finally there is the long tradition of the contract doctrine. Expressing the tie with this line of thought helps to define ideas and accords with natural piety. There are then several advantages in the use of the term "contract." With due precautions taken, it should not be misleading.

A final remark. Justice as fairness is not a complete contract theory. For it is clear that the contractarian idea can be extended to the choice of more or less an entire ethical system, that is, to a system including principles for all the virtues and not only for justice. Now for the most part I shall consider only principles of justice and others closely related to them; I make no attempt to discuss the virtues in a systematic way. Obviously if justice as fairness succeeds reasonably well, a next step would be to study the more general view suggested by the name "rightness as fairness." But even this wider theory fails to embrace all moral relationships, since it would seem to include only our relations with other persons and to leave out of account how we are to conduct ourselves toward animals and the rest of nature. I do not contend that the contract notion offers a way to approach these questions, which are certainly of the first importance; and I shall have to put them aside. We must recognize the limited scope of justice as fairness and of the general type of view that it exemplifies. How far its conclusions must be

A Theory of Justice

revised once these other matters are understood cannot be decided in advance.

The Original Position and Justification

I have said that the original position is the appropriate initial status quo which insures that the fundamental agreements reached in it are fair. This fact yields the name "justice as fairness." It is clear, then, that I want to say that one conception of justice is more reasonable than another, or justifiable with respect to it, if rational persons in the initial situation would choose its principles over those of the other for the role of justice. Conceptions of justice are to be ranked by their acceptability to persons so circumstanced. Understood in this way the question of justification is settled by working out a problem of deliberation: we have to ascertain which principles it would be rational to adopt given the contractual situation. This connects the theory of justice with the theory of rational choice.

If this view of the problem of justification is to succeed, we must, of course, describe in some detail the nature of this choice problem. A problem of rational decision has a definite answer only if we know the beliefs and interests of the parties, their relations with respect to one another, the alternatives between which they are to choose, the procedure whereby they make up their minds, and so on. As the circumstances are presented in different ways, correspondingly different principles are accepted. The concept of the original position, as I shall refer to it, is that of the most philosophically favored interpretation of this initial choice situation for the purposes of a theory of justice.

But how are we to decide what is the most favored interpretation? I assume, for one thing, that there is a broad measure of agreement that principles of justice should be chosen under certain conditions. To justify a particular description of the initial situation one shows that it incorporates these commonly shared presumptions. One argues from widely accepted but weak premises to more specific conclusions. Each of the presumptions should by itself be natural and plausible; some of them may seem